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Full Text of SB0472  93rd General Assembly

SB0472sam003 93rd General Assembly


093_SB0472sam003

 










                                     LRB093 08615 RLC 12349 a

 1                    AMENDMENT TO SENATE BILL 472

 2        AMENDMENT NO.     .  Amend Senate Bill 472 as follows:

 3    by replacing the title with the following:
 4        "AN ACT in relation to criminal law."; and

 5    by replacing everything after the enacting  clause  with  the
 6    following:

 7        "Section  5.  The Illinois Police Training Act is amended
 8    by changing Section 6.1 as follows:

 9        (50 ILCS 705/6.1)
10        Sec.  6.1.  Decertification  of  full-time  and part-time
11    police officers.
12        (a)  The Board must review  police  officer  conduct  and
13    records  to  ensure  that  no  police officer is certified or
14    provided a valid waiver if that police officer has been:
15             (1)  convicted of a felony offense under the laws of
16        this State or any other state which if committed in  this
17        State would be punishable as a felony;.
18             (2)  The  Board  must  also  ensure  that  no police
19        officer is certified or provided a valid waiver  if  that
20        police  officer  has  been  convicted  on  or  after  the
21        effective  date  of  this  amendatory  Act of 1999 of any
 
                            -2-      LRB093 08615 RLC 12349 a
 1        misdemeanor specified in this Section or if committed  in
 2        any  other  state  would be an offense similar to Section
 3        11-6, 11-9.1, 11-14, 11-17,  11-19,  12-2,  12-15,  16-1,
 4        17-1,  17-2, 28-3, 29-1, 31-1, 31-6, 31-7, 32-4a, or 32-7
 5        of the Criminal Code of 1961 or to Section 5  or  5.2  of
 6        the Cannabis Control Act; or
 7             (3)  the subject of an administrative determination,
 8        conducted  pursuant  to  the rules and regulations of the
 9        law enforcement agency or department employing the police
10        officer, of knowingly committing perjury in a criminal or
11        quasicriminal  proceeding.   For  the  purposes  of  this
12        subsection, "perjury" shall have the meaning as set forth
13        in Section 32-2 of the Criminal Code of 1961.
14        The Board  must  appoint  investigators  to  enforce  the
15    duties conferred upon the Board by this Act.
16        (b)  It is the responsibility of the sheriff or the chief
17    executive  officer  of  every local law enforcement agency or
18    department within this State  to  report  to  the  Board  any
19    arrest,   administrative   determination   of   perjury,   or
20    conviction  of  any officer for an offense identified in this
21    Section.
22        (c)  It is the duty and responsibility of every full-time
23    and part-time police officer in this State to report  to  the
24    Board  within  30  days,  and  the officer's sheriff or chief
25    executive officer,  of  his  or  her  arrest,  administrative
26    determination  of  perjury,  or  conviction  for  an  offense
27    identified in this Section. Any full-time or part-time police
28    officer who knowingly makes, submits, causes to be submitted,
29    or  files a false or untruthful report to the Board must have
30    his or her certificate or waiver immediately  decertified  or
31    revoked.
32        (d)  Any person, or a local or State agency, or the Board
33    is  immune  from  liability  for  submitting,  disclosing, or
34    releasing    information    of    arrests,     administrative
 
                            -3-      LRB093 08615 RLC 12349 a
 1    determinations  of perjury, or convictions in this Section as
 2    long as the information is submitted, disclosed, or  released
 3    in  good  faith  and  without malice. The Board has qualified
 4    immunity for the release of the information.
 5        (e)  Any full-time or part-time  police  officer  with  a
 6    certificate or waiver issued by the Board who is convicted of
 7    any  offense  described  in  this Section or is subject to an
 8    administrative determination of perjury immediately   becomes
 9    decertified   or   no   longer   has   a  valid  waiver.  The
10    decertification and invalidity of waivers occurs as a  matter
11    of  law. Failure of a convicted person to report to the Board
12    his or her conviction as described in  this  Section  or  any
13    continued   law   enforcement   practice  after  receiving  a
14    conviction  is a Class 4 felony.
15        (f)   The Board's investigators are  peace  officers  and
16    have  all  the powers possessed by policemen in cities and by
17    sheriff's, provided that the investigators may exercise those
18    powers  anywhere  in  the  State,  only  after  contact   and
19    cooperation   with  the  appropriate  local  law  enforcement
20    authorities.
21        (g)  The Board must request and receive  information  and
22    assistance  from  any  federal,  state, or local governmental
23    agency  as  part  of  the  authorized   criminal   background
24    investigation.   The Department of State Police must process,
25    retain, and additionally provide and disseminate  information
26    to   the   Board   concerning   criminal   charges,  arrests,
27    convictions, and their  disposition,  that  have  been  filed
28    before,  on,  or  after the effective date of this amendatory
29    Act of the 91st General  Assembly  against  a  basic  academy
30    applicant,  law  enforcement  applicant,  or  law enforcement
31    officer whose fingerprint identification cards are on file or
32    maintained by the Department of State  Police.   The  Federal
33    Bureau  of  Investigation must provide the Board any criminal
34    history record information contained in its files  pertaining
 
                            -4-      LRB093 08615 RLC 12349 a
 1    to  law  enforcement  officers  or  any  applicant to a Board
 2    certified basic law enforcement academy as described in  this
 3    Act  based on fingerprint identification. The Board must make
 4    payment of fees to the Department of State  Police  for  each
 5    fingerprint   card   submission   in   conformance  with  the
 6    requirements of paragraph 22 of  Section  55a  of  the  Civil
 7    Administrative Code of Illinois.
 8        (h)  As  soon  as  possible  after  decertification  of a
 9    police officer based upon the police officer's perjury  in  a
10    criminal  or  quasicriminal  case, the Board shall notify the
11    defendant who was a party to a proceeding  that  resulted  in
12    the police officer's decertification based on the perjury.
13    (Source: P.A. 91-495, eff. 1-1-00.)

14        Section   10.   The  Criminal  Code of 1961 is amended by
15    changing Section 9-1 as follows:

16        (720 ILCS 5/9-1) (from Ch. 38, par. 9-1)
17        Sec.  9-1.  First  degree  Murder  -  Death  penalties  -
18    Exceptions - Separate Hearings - Proof - Findings - Appellate
19    procedures - Reversals.
20        (a)  A person who  kills  an  individual  without  lawful
21    justification  commits  first degree murder if, in performing
22    the acts which cause the death:
23             (1)  he either intends to kill or  do  great  bodily
24        harm  to  that  individual or another, or knows that such
25        acts will cause death to that individual or another; or
26             (2)  he  knows  that  such  acts  create  a   strong
27        probability  of  death  or  great  bodily  harm  to  that
28        individual or another; or
29             (3)  he  is  attempting  or  committing  a  forcible
30        felony other than second degree murder.
31        (b)  Aggravating Factors.  A defendant who at the time of
32    the  commission  of the offense has attained the age of 18 or
 
                            -5-      LRB093 08615 RLC 12349 a
 1    more and who has been found guilty of first degree murder may
 2    be sentenced to death if:
 3             (1)  the murdered individual was a peace officer  or
 4        fireman  killed  in the course of performing his official
 5        duties,  to  prevent  the  performance  of  his  official
 6        duties, or in retaliation  for  performing  his  official
 7        duties,  and the defendant knew or should have known that
 8        the murdered individual was a peace officer  or  fireman;
 9        or
10             (2)  the  murdered  individual was an employee of an
11        institution or facility of the Department of Corrections,
12        or any similar local correctional agency, killed  in  the
13        course  of performing his official duties, to prevent the
14        performance of his official duties, or in retaliation for
15        performing  his  official   duties,   or   the   murdered
16        individual  was an inmate at such institution or facility
17        and was killed on the grounds thereof,  or  the  murdered
18        individual  was  otherwise present in such institution or
19        facility with the knowledge and  approval  of  the  chief
20        administrative officer thereof; or
21             (3)  the  defendant  has been convicted of murdering
22        two or more individuals  under  subsection  (a)  of  this
23        Section  or  under any law of the United States or of any
24        state which is substantially similar to subsection (a) of
25        this Section regardless  of whether the  deaths  occurred
26        as  the  result  of the same act or of several related or
27        unrelated acts so long as the deaths were the  result  of
28        either  an  intent  to  kill  more  than one person or of
29        separate acts which the defendant knew would cause  death
30        or  create  a strong probability of death or great bodily
31        harm to the murdered individual or another; or
32             (4)  the murdered individual was killed as a  result
33        of  the  hijacking  of  an  airplane, train, ship, bus or
34        other public conveyance; or
 
                            -6-      LRB093 08615 RLC 12349 a
 1             (5)  the defendant committed the murder pursuant  to
 2        a contract, agreement or understanding by which he was to
 3        receive   money  or  anything  of  value  in  return  for
 4        committing the murder or procured another to  commit  the
 5        murder for money or anything of value; or
 6             (6)  the  murdered  individual  was  killed  in  the
 7        course of another felony if:
 8                  (a)  the murdered individual:
 9                       (i)  was actually killed by the defendant,
10                  or
11                       (ii)  received      physical      injuries
12                  personally    inflicted    by   the   defendant
13                  substantially contemporaneously  with  physical
14                  injuries  caused  by  one  or  more persons for
15                  whose  conduct   the   defendant   is   legally
16                  accountable under Section 5-2 of this Code, and
17                  the  physical  injuries inflicted by either the
18                  defendant or the other person  or  persons  for
19                  whose  conduct he is legally accountable caused
20                  the death of the murdered individual; and
21                  (b)  in performing the acts  which  caused  the
22             death  of  the murdered individual or which resulted
23             in physical injuries  personally  inflicted  by  the
24             defendant  on  the  murdered  individual  under  the
25             circumstances  of  subdivision  (ii) of subparagraph
26             (a) of paragraph  (6)  of  subsection  (b)  of  this
27             Section, the defendant acted with the intent to kill
28             the  murdered  individual or with the knowledge that
29             his acts created a strong probability  of  death  or
30             great  bodily  harm  to  the  murdered individual or
31             another; and
32                  (c)  the other felony was an inherently violent
33             crime one of the  following:  armed  robbery,  armed
34             violence, robbery, predatory criminal sexual assault
 
                            -7-      LRB093 08615 RLC 12349 a
 1             of  a  child,  aggravated  criminal  sexual assault,
 2             aggravated    kidnapping,    aggravated    vehicular
 3             hijacking,  forcible  detention,  arson,  aggravated
 4             arson, aggravated  stalking,  burglary,  residential
 5             burglary,  home  invasion,  calculated criminal drug
 6             conspiracy as defined in Section 405 of the Illinois
 7             Controlled Substances Act, streetgang criminal  drug
 8             conspiracy  as  defined  in  Section  405.2  of  the
 9             Illinois  Controlled  Substances Act, or the attempt
10             to commit  an  inherently  violent  crime.  In  this
11             subparagraph   (c),   "inherently   violent   crime"
12             includes,  but  is  not  limited  to, armed robbery,
13             robbery, predatory  criminal  sexual  assault  of  a
14             child,    aggravated    criminal   sexual   assault,
15             aggravated    kidnapping,    aggravated    vehicular
16             hijacking, aggravated  arson,  aggravated  stalking,
17             residential  burglary,  and home invasion any of the
18             felonies listed in this subsection (c); or
19             (7)  the murdered individual was under 12  years  of
20        age  and  the death resulted from exceptionally brutal or
21        heinous behavior indicative of wanton cruelty; or
22             (8)  the defendant committed the murder with  intent
23        to prevent the murdered individual from testifying in any
24        criminal prosecution or giving material assistance to the
25        State in any investigation or prosecution, either against
26        the  defendant or another; or the defendant committed the
27        murder because the murdered individual was a  witness  in
28        any  prosecution or gave material assistance to the State
29        in any investigation or prosecution, either  against  the
30        defendant or another; or
31             (9)  the  defendant,  while  committing  an  offense
32        punishable  under Sections 401, 401.1, 401.2, 405, 405.2,
33        407 or 407.1 or subsection (b)  of  Section  404  of  the
34        Illinois Controlled Substances Act, or while engaged in a
 
                            -8-      LRB093 08615 RLC 12349 a
 1        conspiracy   or  solicitation  to  commit  such  offense,
 2        intentionally  killed   an   individual   or   counseled,
 3        commanded,  induced,  procured  or caused the intentional
 4        killing of the murdered individual; or
 5             (10)  the   defendant   was   incarcerated   in   an
 6        institution or facility of the Department of  Corrections
 7        at  the  time  of  the  murder,  and  while committing an
 8        offense punishable as a felony  under  Illinois  law,  or
 9        while  engaged  in a conspiracy or solicitation to commit
10        such  offense,  intentionally  killed  an  individual  or
11        counseled, commanded, induced,  procured  or  caused  the
12        intentional killing of the murdered individual; or
13             (11)  the murder was committed in a cold, calculated
14        and  premeditated manner pursuant to a preconceived plan,
15        scheme or design to take a human life by unlawful  means,
16        and  the  conduct  of  the defendant created a reasonable
17        expectation that the death of a human being would  result
18        therefrom; or
19             (12)  the   murdered  individual  was  an  emergency
20        medical  technician  -   ambulance,   emergency   medical
21        technician - intermediate, emergency medical technician -
22        paramedic,  ambulance driver, or other medical assistance
23        or first aid personnel, employed  by  a  municipality  or
24        other   governmental   unit,  killed  in  the  course  of
25        performing  his   official   duties,   to   prevent   the
26        performance of his official duties, or in retaliation for
27        performing his official duties, and the defendant knew or
28        should  have  known  that  the murdered individual was an
29        emergency  medical  technician  -  ambulance,   emergency
30        medical  technician  -  intermediate,  emergency  medical
31        technician   -  paramedic,  ambulance  driver,  or  other
32        medical assistance or first aid personnel; or
33             (13)  the defendant was a  principal  administrator,
34        organizer,  or  leader  of  a  calculated  criminal  drug
 
                            -9-      LRB093 08615 RLC 12349 a
 1        conspiracy  consisting  of  a  hierarchical  position  of
 2        authority  superior  to  that of all other members of the
 3        conspiracy,  and  the  defendant  counseled,   commanded,
 4        induced,  procured,  or caused the intentional killing of
 5        the murdered person; or
 6             (14)  the murder was intentional  and  involved  the
 7        infliction  of  torture.  For the purpose of this Section
 8        torture means the infliction of or subjection to  extreme
 9        physical  pain,  motivated  by  an  intent to increase or
10        prolong the pain, suffering or agony of the victim; or
11             (15)  the murder was committed as a  result  of  the
12        intentional  discharge of a firearm by the defendant from
13        a motor vehicle and the victim was not present within the
14        motor vehicle; or
15             (16)  the murdered individual was 60 years of age or
16        older and the death resulted from exceptionally brutal or
17        heinous behavior indicative of wanton cruelty; or
18             (17)  the murdered individual was a disabled  person
19        and  the  defendant  knew  or  should have known that the
20        murdered individual was disabled.  For purposes  of  this
21        paragraph  (17),  "disabled  person"  means  a person who
22        suffers from a permanent physical  or  mental  impairment
23        resulting from disease, an injury, a functional disorder,
24        or   a  congenital  condition  that  renders  the  person
25        incapable of adequately providing  for  his  or  her  own
26        health or personal care; or
27             (18)  the  murder  was  committed  by  reason of any
28        person's activity as a community policing volunteer or to
29        prevent  any  person  from  engaging  in  activity  as  a
30        community policing volunteer; or
31             (19)  the murdered  individual  was  subject  to  an
32        order  of  protection  and  the murder was committed by a
33        person against whom the  same  order  of  protection  was
34        issued  under the Illinois Domestic Violence Act of 1986;
 
                            -10-     LRB093 08615 RLC 12349 a
 1        or
 2             (20)  the  murdered  individual  was  known  by  the
 3        defendant to be a teacher or other person employed in any
 4        school and the teacher or  other  employee  is  upon  the
 5        grounds  of  a school or grounds adjacent to a school, or
 6        is in any part of a building used for school purposes; or
 7             (21)  the murder was committed by the  defendant  in
 8        connection  with  or  as  a  result  of  the  offense  of
 9        terrorism as defined in Section 29D-30 of this Code.
10          (c)  Consideration   of   factors  in  Aggravation  and
11    Mitigation.
12        The court shall consider, or shall instruct the  jury  to
13    consider any aggravating and any mitigating factors which are
14    relevant to the imposition of the death penalty.  Aggravating
15    factors  may include but need not be limited to those factors
16    set forth in subsection (b). Mitigating factors  may  include
17    but need not be limited to the following:
18             (1)  the  defendant  has  no  significant history of
19        prior criminal activity;
20             (2)  the murder was committed  while  the  defendant
21        was  under  the  influence of extreme mental or emotional
22        disturbance, although not such as to constitute a defense
23        to prosecution;
24             (3)  the murdered individual was  a  participant  in
25        the  defendant's  homicidal  conduct  or consented to the
26        homicidal act;
27             (4)  the defendant acted  under  the  compulsion  of
28        threat  or  menace of the imminent infliction of death or
29        great bodily harm;
30             (5)  the defendant was not personally present during
31        commission of the act or acts causing death;.
32             (6)  the defendant's background includes  a  history
33        of extreme emotional or physical abuse;
34             (7)  the  defendant  suffers  from  a reduced mental
 
                            -11-     LRB093 08615 RLC 12349 a
 1        capacity.
 2        (d)  Separate sentencing hearing.
 3        Where requested by the State, the court shall  conduct  a
 4    separate  sentencing proceeding to determine the existence of
 5    factors set forth in  subsection  (b)  and  to  consider  any
 6    aggravating  or mitigating factors as indicated in subsection
 7    (c).  The proceeding shall be conducted:
 8             (1)  before the jury that determined the defendant's
 9        guilt; or
10             (2)  before a jury impanelled for the purpose of the
11        proceeding if:
12                  A.  the defendant was convicted upon a plea  of
13             guilty; or
14                  B.  the  defendant  was convicted after a trial
15             before the court sitting without a jury; or
16                  C.  the court for good cause  shown  discharges
17             the jury that determined the defendant's guilt; or
18             (3)  before  the court alone if the defendant waives
19        a jury for the separate proceeding.
20        (e)  Evidence and Argument.
21        During the proceeding any information relevant to any  of
22    the  factors  set forth in subsection (b) may be presented by
23    either the State or the defendant under the  rules  governing
24    the   admission   of   evidence   at  criminal  trials.   Any
25    information relevant to any additional aggravating factors or
26    any mitigating factors indicated in  subsection  (c)  may  be
27    presented  by  the  State  or  defendant  regardless  of  its
28    admissibility  under  the  rules  governing  the admission of
29    evidence at criminal trials.  The  State  and  the  defendant
30    shall  be  given  fair  opportunity  to rebut any information
31    received at the hearing.
32        (f)  Proof.
33        The burden of proof of establishing the existence of  any
34    of  the  factors  set forth in subsection (b) is on the State
 
                            -12-     LRB093 08615 RLC 12349 a
 1    and shall  not  be  satisfied  unless  established  beyond  a
 2    reasonable doubt.
 3        (g)  Procedure - Jury.
 4        If  at  the separate sentencing proceeding the jury finds
 5    that none of the factors set forth in subsection (b)  exists,
 6    the   court  shall  sentence  the  defendant  to  a  term  of
 7    imprisonment  under  Chapter  V  of  the  Unified   Code   of
 8    Corrections.   If  there  is  a unanimous finding by the jury
 9    that one or more of the factors set forth in  subsection  (b)
10    exist,  the  jury  shall  consider aggravating and mitigating
11    factors as  instructed  by  the  court  and  shall  determine
12    whether  the sentence of death shall be imposed.  If the jury
13    determines  unanimously,  after  weighing  the   factors   in
14    aggravation  and  mitigation,  that  death is the appropriate
15    sentence that there are no mitigating factors  sufficient  to
16    preclude  the  imposition  of  the  death sentence, the court
17    shall sentence the defendant to death.  If the court does not
18    concur  with  the  jury  determination  that  death  is   the
19    appropriate  sentence,  the  court shall set forth reasons in
20    writing including  what  facts  or  circumstances  the  court
21    relied   upon,   along  with  any  relevant  documents,  that
22    compelled the court to non-concur  with  the  sentence.  This
23    document  and any attachments shall be part of the record for
24    appellate review.
25        If  after  weighing  the  factors  in   aggravation   and
26    mitigation,  one  or more jurors determines that death is not
27    the appropriate sentence, Unless the jury  unanimously  finds
28    that  there  are no mitigating factors sufficient to preclude
29    the imposition of the death sentence the court shall sentence
30    the defendant to a term of imprisonment under  Chapter  V  of
31    the Unified Code of Corrections.
32        (h)  Procedure - No Jury.
33        In  a  proceeding  before  the  court alone, if the court
34    finds that none  of  the  factors  found  in  subsection  (b)
 
                            -13-     LRB093 08615 RLC 12349 a
 1    exists,  the  court shall sentence the defendant to a term of
 2    imprisonment  under  Chapter  V  of   the  Unified  Code   of
 3    Corrections.
 4        If  the  Court determines that one or more of the factors
 5    set forth in subsection (b) exists, the Court shall  consider
 6    any  aggravating  and  mitigating  factors  as  indicated  in
 7    subsection  (c).  If the Court determines, after weighing the
 8    factors in aggravation and  mitigation,  that  death  is  the
 9    appropriate  sentence  that  there  are no mitigating factors
10    sufficient to preclude the imposition of the death  sentence,
11    the Court shall sentence the defendant to death.
12        If  Unless  the  court finds that there are no mitigating
13    factors sufficient to preclude the imposition of the sentence
14    of death is not the appropriate  sentence,  the  court  shall
15    sentence  the  defendant  to  a  term  of  imprisonment under
16    Chapter V of the Unified Code of Corrections.
17        (h-5)  Decertification as a capital case.
18        In a case in which the State seeks the death  penalty  as
19    an appropriate sentence, at the conclusion of all evidence in
20    the case, the court may decertify the case as a death penalty
21    case  if  the  court  makes  a  written finding that the only
22    evidence  supporting  the  defendant's  conviction   is   the
23    uncorroborated  testimony  of an in-custody informant witness
24    concerning the confession or admission of  the  defendant  or
25    that  the  sole  evidence  against  the defendant is a single
26    eyewitness   or   single   accomplice   without   any   other
27    corroborating evidence.
28        (i)  Appellate Procedure.
29        The conviction and sentence of death shall be subject  to
30    automatic  review by the Supreme Court.  Such review shall be
31    in accordance with rules promulgated by  the  Supreme  Court.
32    The  Illinois  Supreme Court may overturn the death sentence,
33    and order the imposition of imprisonment under Chapter  V  of
34    the  Unified  Code of Corrections if the court finds that the
 
                            -14-     LRB093 08615 RLC 12349 a
 1    death sentence is fundamentally  unjust  as  applied  to  the
 2    particular case. If the Illinois Supreme Court finds that the
 3    death  sentence  is  fundamentally  unjust  as applied to the
 4    particular case, independent of any  procedural  grounds  for
 5    relief,  the  Illinois  Supreme  Court  shall issue a written
 6    opinion explaining this finding.
 7        (j)  Disposition of reversed death sentence.
 8        In the event that the death penalty in this Act  is  held
 9    to  be  unconstitutional  by  the Supreme Court of the United
10    States or of the State of Illinois, any person  convicted  of
11    first degree murder shall be sentenced by the court to a term
12    of  imprisonment  under  Chapter  V  of  the  Unified Code of
13    Corrections.
14        In the event that any  death  sentence  pursuant  to  the
15    sentencing   provisions   of   this   Section   is   declared
16    unconstitutional by the Supreme Court of the United States or
17    of  the State of Illinois, the court having jurisdiction over
18    a person  previously  sentenced  to  death  shall  cause  the
19    defendant to be brought before the court, and the court shall
20    sentence the  defendant  to  a  term  of  imprisonment  under
21    Chapter V of the Unified Code of Corrections.
22    (Source: P.A.  91-357,  eff.  7-29-99;  91-434,  eff. 1-1-00;
23    92-854, eff. 12-5-02.)

24        Section 15. The Code of Criminal  Procedure  of  1963  is
25    amended by changing Sections 114-13, 116-3, 122-1 and 122-2.1
26    and  adding Article 107A and Sections 114-15, 115-21, 115-22,
27    116-5, and 122-2.2 as follows:

28        (725 ILCS 5/107A Art. heading new)
29          ARTICLE 107A.  LINEUP AND PHOTO SPREAD PROCEDURE

30        (725 ILCS 5/107A-5 new)
31        Sec. 107A-5.  Lineup and photo spread procedure.
 
                            -15-     LRB093 08615 RLC 12349 a
 1        (a)  All  lineups  shall  be  photographed  or  otherwise
 2    recorded. These photographs shall be disclosed to the accused
 3    and his or her defense counsel during  discovery  proceedings
 4    as  provided in Illinois Supreme Court Rules. All photographs
 5    of suspects shown to an eyewitness during  the  photo  spread
 6    shall  be  disclosed  to  the  accused and his or her defense
 7    counsel during discovery proceedings as provided in  Illinois
 8    Supreme Court Rules.
 9        (b)  Each  eyewitness  who views a lineup or photo spread
10    shall sign a form containing the following information:
11             (1)  The suspect might not be in the lineup or photo
12        spread and the eyewitness is not  obligated  to  make  an
13        identification.
14             (2)  The  eyewitness  should  not  assume  that  the
15        person  administering  the  lineup  or photo spread knows
16        which person is the suspect in the case.
17        (c)  Suspects in a lineup  or  photo  spread  should  not
18    appear  to  be  substantially  different  from  "fillers"  or
19    "distracters"  in  the  lineup  or photo spread, based on the
20    eyewitness' previous description of the perpetrator, or based
21    on other factors that would draw attention to the suspect.

22        (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
23        Sec. 114-13.  Discovery in criminal cases.
24        (a)  Discovery procedures in criminal cases shall  be  in
25    accordance with Supreme Court Rules.
26        (b)  Any  investigative, law enforcement, or other agency
27    responsible  for  investigating   any   felony   offense   or
28    participating  in  an  investigation  of  any felony offense,
29    other  than  defense  investigators,  shall  provide  to  the
30    authority prosecuting the offense all investigative material,
31    including but not limited to reports, memoranda,  and  notes,
32    that  have been generated by or have come into the possession
33    of the investigating  agency  concerning  the  offense  being
 
                            -16-     LRB093 08615 RLC 12349 a
 1    investigated.  In  addition,  the  investigating agency shall
 2    provide  to  the  prosecuting  authority  any   material   or
 3    information  within its possession or control that would tend
 4    to negate the guilt of the accused of the offense charged  or
 5    reduce   his   or  her  punishment  for  the  offense.  Every
 6    investigative and law enforcement agency in this State  shall
 7    adopt policies to ensure compliance with these standards.
 8    (Source: Laws 1963, p. 2836.)

 9        (725 ILCS 5/114-15 new)
10        Sec. 114-15.  Mental retardation.
11        (a)  In  a  first  degree  murder case in which the State
12    seeks the death penalty as an appropriate sentence, any party
13    may raise the issue of the defendant's mental retardation  by
14    motion.  A defendant wishing to raise the issue of his or her
15    mental retardation shall provide written notice to the  State
16    and  the  court  as soon as the defendant reasonably believes
17    such issue will be raised.
18        (b)  The issue  of  the  defendant's  mental  retardation
19    shall be determined in a pretrial hearing. The court shall be
20    the  fact  finder  on  the  issue  of  the defendant's mental
21    retardation and shall determine the issue by a  preponderance
22    of  evidence  in  which  the  moving  party has the burden of
23    proof. The court may appoint an expert in the field of mental
24    retardation. The defendant and the State  may  offer  experts
25    from  the  field  of  mental  retardation.  The  court  shall
26    determine  admissibility  of evidence and qualification as an
27    expert.
28        (c)  In determining whether  the  defendant  is  mentally
29    retarded,  the mental retardation must have manifested itself
30    by the age of 18. An intelligence  quotient  (IQ)  of  75  or
31    below is presumptive evidence of mental retardation. IQ tests
32    and  psychometric tests administered to the defendant must be
33    the kind and type recognized  by  experts  in  the  field  of
 
                            -17-     LRB093 08615 RLC 12349 a
 1    mental   retardation.  In  order  for  the  defendant  to  be
 2    considered mentally retarded, a low IQ must be accompanied by
 3    significant deficits in adaptive behavior in at  least  2  of
 4    the  following  skill areas: communication, self-care, social
 5    or  interpersonal  skills,   home   living,   self-direction,
 6    academics, health and safety, use of community resources, and
 7    work.
 8        (d)  Evidence  of  mental retardation that did not result
 9    in  disqualifying  the  case  as  a  capital  case,  may   be
10    introduced   as  evidence  in  mitigation  during  a  capital
11    sentencing hearing. A failure of the court to determine  that
12    the  defendant  is  mentally  retarded  does not preclude the
13    court during trial from allowing evidence relating to  mental
14    disability should the court deem it appropriate.
15        (e)  If  the court determines that a capital defendant is
16    mentally retarded, the case shall no longer be  considered  a
17    capital  case  and  the procedural guidelines established for
18    capital cases shall no longer be applicable to the defendant.
19    In that case, the defendant, if convicted, shall be sentenced
20    under the sentencing provisions of Chapter V of  the  Unified
21    Code  of  Corrections.  A  denial  of  such a petition may be
22    appealed to the Illinois Supreme Court.

23        (725 ILCS 5/115-21 new)
24        Sec. 115-21.  Informant testimony.
25        (a)  For the purposes of this Section, "informant"  means
26    someone who is purporting to testify about admissions made to
27    him  or  her  by  the  accused  while incarcerated in a penal
28    institution contemporaneously.
29        (b)  This Section applies to any capital  case  in  which
30    the   prosecution   attempts   to   introduce   evidence   of
31    incriminating statements made by the accused to an informant.
32        (c)  In  any  case  under  this  Section, the prosecution
33    shall timely disclose in discovery:
 
                            -18-     LRB093 08615 RLC 12349 a
 1             (1)  the complete criminal history of the informant;
 2             (2)  any deal, promise, inducement, or benefit  that
 3        the offering party has made or will make in the future to
 4        the informant;
 5             (3)  the statements made by the accused;
 6             (4)  the  time and place of the statements, the time
 7        and  place  of  their  disclosure  to   law   enforcement
 8        officials,  and the names of all persons who were present
 9        when the statements were made;
10             (5)  whether at any time the informant recanted that
11        testimony or statement and, if so, the time and place  of
12        the  recantation,  the nature of the recantation, and the
13        names of the persons who were present at the recantation;
14             (6)  other cases of which the prosecution  is  aware
15        in which the informant testified against an individual or
16        offered  a  statement  against an individual, and whether
17        the informant received any deal, promise, inducement,  or
18        benefit  in  exchange for or subsequent to that testimony
19        or statement; and
20             (7)  any   other   information   relevant   to   the
21        informant's credibility.
22        (d)  In any case under this Section, the prosecution must
23    timely disclose its intent to introduce the testimony  of  an
24    informant.   The  court  shall conduct a hearing to determine
25    whether the testimony of the informant  is  reliable,  unless
26    the  defendant  waives  such  a  hearing.  If the prosecution
27    fails to show by a preponderance of  the  evidence  that  the
28    informant's  testimony is reliable, the court shall not allow
29    the testimony to be heard at trial.   At  this  hearing,  the
30    court shall consider the factors enumerated in subsection (c)
31    as well as any other factors relating to reliability.
32        (e)  A  hearing  required  under  subsection (d) does not
33    apply to statements covered under  subsection  (b)  that  are
34    lawfully recorded.
 
                            -19-     LRB093 08615 RLC 12349 a
 1        (f)  This   Section   applies   to   all   death  penalty
 2    prosecutions initiated on or after the effective date of this
 3    amendatory Act of the 93rd General Assembly.

 4        (725 ILCS 5/115-22 new)
 5        Sec.  115-22.  Witness  inducements.   When   the   State
 6    intends  to introduce the testimony of a witness in a capital
 7    case,  the  State  shall,  before  trial,  disclose  to   the
 8    defendant  and  to  his  or her defense counsel the following
 9    information, which shall be reduced to writing:
10             (1)  whether  the  witness  has  received  anything,
11        including pay, immunity  from  prosecution,  leniency  in
12        prosecution,  or  personal  advantage,  in  exchange  for
13        testimony;
14             (2)  any  other  case in which the witness testified
15        or offered statements against an individual but  was  not
16        called,  and  whether the statements were admitted in the
17        case, and whether the witness received any deal, promise,
18        inducement, or benefit in exchange for that testimony  or
19        statement;
20             (3)  whether the witness has ever changed his or her
21        testimony;
22             (4)  the criminal history of the witness; and
23             (5)  any  other evidence relevant to the credibility
24        of the witness.

25        (725 ILCS 5/116-3)
26        Sec. 116-3.  Motion for fingerprint or  forensic  testing
27    not available at trial regarding actual innocence.
28        (a)  A defendant may make a motion before the trial court
29    that  entered  the  judgment of conviction in his or her case
30    for the performance of fingerprint or forensic  DNA  testing,
31    including  comparison analysis of genetic marker groupings of
32    the evidence collected by criminal justice agencies  pursuant
 
                            -20-     LRB093 08615 RLC 12349 a
 1    to  the  alleged offense, to those of the defendant, to those
 2    of other forensic evidence, and  to  those  maintained  under
 3    subsection  (f)  of  Section  5-4-3  of  the  Unified Code of
 4    Corrections, on evidence that was secured in relation to  the
 5    trial  which resulted in his or her conviction, but which was
 6    not subject to the testing which is now requested because the
 7    technology for the testing was not available at the  time  of
 8    trial.   Reasonable notice of the motion shall be served upon
 9    the State.
10        (b)  The defendant must present a prima facie case that:
11             (1)  identity was  the  issue  in  the  trial  which
12        resulted in his or her conviction; and
13             (2)  the evidence to be tested has been subject to a
14        chain  of custody sufficient to establish that it has not
15        been substituted, tampered with, replaced, or altered  in
16        any material aspect.
17        (c)  The  trial  court  shall  allow  the  testing  under
18    reasonable   conditions   designed  to  protect  the  State's
19    interests in the integrity of the evidence  and  the  testing
20    process upon a determination that:
21             (1)  the  result  of  the testing has the scientific
22        potential  to   produce   new,   noncumulative   evidence
23        materially  relevant  to  the  defendant's  assertion  of
24        actual   innocence   even  though  the  results  may  not
25        completely exonerate the defendant;
26             (2)  the  testing  requested  employs  a  scientific
27        method generally accepted within the relevant  scientific
28        community.
29    (Source: P.A. 90-141, eff. 1-1-98.)

30        (725 ILCS 5/116-5 new)
31        Sec.  116-5.  Motion  for  DNA  database  search (genetic
32    marker groupings comparison analysis).
33        (a)  Upon motion by a defendant charged with any  offense
 
                            -21-     LRB093 08615 RLC 12349 a
 1    where   DNA   evidence   may   be  material  to  the  defense
 2    investigation or relevant at trial, a court may order  a  DNA
 3    database  search  by  the  Department  of  State Police. Such
 4    analysis may include comparing:
 5             (1)  the genetic profile from forensic evidence that
 6        was secured in relation to the trial against the  genetic
 7        profile of the defendant,
 8             (2)  the   genetic  profile  of  items  of  forensic
 9        evidence secured in relation  to  trial  to  the  genetic
10        profile of other forensic evidence secured in relation to
11        trial, or
12             (3)  the    genetic    profiles   referred   to   in
13        subdivisions (1) and (2) against:
14                  (i)  genetic profiles of  offenders  maintained
15             under subsection (f) of Section 5-4-3 of the Unified
16             Code of Corrections, or
17                  (ii)  genetic   profiles,   including  but  not
18             limited to, profiles from unsolved crimes maintained
19             in state or local DNA databases by  law  enforcement
20             agencies.
21        (b)  If  appropriate  federal criteria are met, the court
22    may order the Department  of  State  Police  to  request  the
23    National  DNA  index system to search its database of genetic
24    profiles.
25        (c)  If   requested   by   the   defense,    a    defense
26    representative  shall  be  allowed to view any genetic marker
27    grouping  analysis  conducted  by  the  Department  of  State
28    Police. The defense shall be  provided  with  copies  of  all
29    documentation,      correspondence,     including     digital
30    correspondence, notes, memoranda, and  reports  generated  in
31    relation to the analysis.
32        (d)  Reasonable notice of the motion shall be served upon
33    the State.
 
                            -22-     LRB093 08615 RLC 12349 a
 1        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
 2        Sec. 122-1. Petition in the trial court.
 3        (a)  Any   person  imprisoned  in  the  penitentiary  may
 4    institute a proceeding under this Article if the  person  who
 5    asserts that:
 6             (1)  in the proceedings which resulted in his or her
 7        conviction  there  was a substantial denial of his or her
 8        rights under the Constitution of the United States or  of
 9        the  State  of  Illinois  or  both;  or  may  institute a
10        proceeding under this Article.
11             (2)  the death penalty  was  imposed  and  there  is
12        newly  discovered evidence not available to the person at
13        the time of the proceeding that resulted in  his  or  her
14        conviction   that  establishes  a  substantial  basis  to
15        believe that the defendant is actually innocent by  clear
16        and convincing evidence.
17        (a-5)  A proceeding under paragraph (2) of subsection (a)
18    may be commenced within a reasonable period of time after the
19    person's  conviction  notwithstanding any other provisions of
20    this  Article.  In  such  a   proceeding   regarding   actual
21    innocence,  if the court determines the petition is frivolous
22    or is patently without merit, it shall dismiss  the  petition
23    in  a  written  order,  specifying  the  findings of fact and
24    conclusions of law it made in  reaching  its  decision.  Such
25    order  of  dismissal  is a final judgment and shall be served
26    upon the petitioner by certified mail within 10 days  of  its
27    entry.
28        (b)  The proceeding shall be commenced by filing with the
29    clerk  of  the  court  in  which  the conviction took place a
30    petition  (together  with  a  copy   thereof)   verified   by
31    affidavit.  Petitioner shall also serve another copy upon the
32    State's  Attorney by any of the methods provided in Rule 7 of
33    the Supreme Court.  The clerk shall docket the  petition  for
34    consideration  by  the court pursuant to Section 122-2.1 upon
 
                            -23-     LRB093 08615 RLC 12349 a
 1    his or her receipt thereof and bring the same promptly to the
 2    attention of the court.
 3        (c)  Except as otherwise provided in subsection (a-5), if
 4    the petitioner is under sentence  of  death,  no  proceedings
 5    under  this  Article  shall  be  commenced more than 6 months
 6    after the denial of a petition for certiorari to  the  United
 7    States  Supreme Court on direct appeal, or more than 6 months
 8    from the date for filing such a petition if none is filed.
 9        When a defendant has a  sentence  other  than  death,  no
10    proceedings under this Article shall be commenced more than 6
11    months  after  the denial of the Petition for Leave to Appeal
12    to the Illinois Supreme Court, or more than 6 months from the
13    date for filing such a petition if none is filed.
14        This limitation does not apply to a petition advancing  a
15    claim  of actual innocence. no proceedings under this Article
16    shall be commenced more than 6 months after the denial  of  a
17    petition  for  leave  to appeal or the date for filing such a
18    petition if none is filed or more  than  45  days  after  the
19    defendant  files  his  or  her  brief  in  the  appeal of the
20    sentence before the Illinois Supreme Court (or more  than  45
21    days  after  the  deadline  for the filing of the defendant's
22    brief with the Illinois Supreme Court if no brief  is  filed)
23    or  3 years from the date of conviction, whichever is sooner,
24    unless the petitioner alleges facts showing  that  the  delay
25    was not due to his or her culpable negligence.
26        (d)  A  person  seeking relief by filing a petition under
27    this Section must specify in the petition or its heading that
28    it is filed under this Section.    A  trial  court  that  has
29    received  a  petition complaining of a conviction or sentence
30    that fails to specify in the petition or its heading that  it
31    is filed under this Section need not evaluate the petition to
32    determine whether it could otherwise have stated some grounds
33    for relief under this Article.
34        (e)  A proceeding under this Article may not be commenced
 
                            -24-     LRB093 08615 RLC 12349 a
 1    on  behalf  of  a  defendant  who has been sentenced to death
 2    without the written consent  of  the  defendant,  unless  the
 3    defendant,  because  of  a  mental  or physical condition, is
 4    incapable of asserting his or her own claim.
 5    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
 6    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)

 7        (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
 8        Sec.  122-2.1.  (a)  Within  90 days after the filing and
 9    docketing of each petition,  the  court  shall  examine  such
10    petition and enter an order thereon pursuant to this Section.
11             (1)  If  the  petitioner  is under sentence of death
12        and is without counsel and alleges  that  he  is  without
13        means  to  procure counsel, he shall state whether or not
14        he wishes counsel to be appointed to represent him.    If
15        appointment  of  counsel is so requested, the court shall
16        appoint counsel if satisfied that the petitioner  has  no
17        means to procure counsel.
18             (2)  If  the petitioner is sentenced to imprisonment
19        and the court determines the petition is frivolous or  is
20        patently  without merit, it shall dismiss the petition in
21        a written order, specifying  the  findings  of  fact  and
22        conclusions  of  law  it  made  in reaching its decision.
23        Such order of dismissal is a final judgment and shall  be
24        served  upon  the  petitioner by certified mail within 10
25        days of its entry.
26        (b)  If the petition is not dismissed  pursuant  to  this
27    Section,  the  court  shall order the petition to be docketed
28    for further consideration in accordance with  Sections  122-4
29    through  122-6. If the petitioner is under sentence of death,
30    the court shall order the petition to be docketed for further
31    consideration and hearing within one year of  the  filing  of
32    the petition.
33        (c)  In  considering a petition pursuant to this Section,
 
                            -25-     LRB093 08615 RLC 12349 a
 1    the court may examine the court file  of  the  proceeding  in
 2    which  the  petitioner  was convicted, any action taken by an
 3    appellate court in such proceeding  and  any  transcripts  of
 4    such proceeding.
 5    (Source: P.A. 86-655; 87-904.)

 6        (725 ILCS 5/122-2.2 new)
 7        Sec.  122-2.2.  Mental  retardation  and  post-conviction
 8    relief.
 9        (a)  In  cases in which a defendant has been convicted of
10    first-degree murder, sentenced to death, and  is  in  custody
11    pending  execution  of  the  sentence of death, the following
12    procedures shall apply:
13             (1)  Notwithstanding any other provision of  law  or
14        rule of court, a defendant may seek relief from the death
15        sentence  through  a  petition for post-conviction relief
16        under  this  Article  alleging  that  the  defendant  was
17        mentally retarded at the time the offense was alleged  to
18        have been committed.
19             (2)  The  petition  must be filed within 180 days of
20        the effective date of this amendatory  Act  of  the  93rd
21        General  Assembly  or  within 180 days of the issuance of
22        the mandate by the Illinois  Supreme  Court  setting  the
23        date of execution, whichever is later.
24        (3)  All  other  provisions  of  this  Article  governing
25    petitions   for  post-conviction  relief  shall  apply  to  a
26    petition   for   post-conviction   relief   alleging   mental
27    retardation.

28        Section 20.  The Capital Crimes Litigation Act is amended
29    by changing Sections 15 and 19 as follows:

30        (725 ILCS 124/15)
31        (Section scheduled to be repealed on July 1, 2004)
 
                            -26-     LRB093 08615 RLC 12349 a
 1        Sec. 15.  Capital Litigation Trust Fund.
 2        (a)  The Capital Litigation Trust Fund is  created  as  a
 3    special  fund in the State Treasury.  The Trust Fund shall be
 4    administered by the State Treasurer to provide moneys for the
 5    appropriations  to  be  made,  grants  to  be  awarded,   and
 6    compensation  and  expenses  to  be paid under this Act.  All
 7    interest earned from the  investment  or  deposit  of  moneys
 8    accumulated in the Trust Fund shall, under Section 4.1 of the
 9    State Finance Act,  be deposited into the Trust Fund.
10        (b)  Moneys  deposited  into  the Trust Fund shall not be
11    considered general revenue of the State of Illinois.
12        (c)  Moneys deposited into the Trust Fund shall  be  used
13    exclusively  for  the  purposes  of providing funding for the
14    prosecution and defense of capital cases as provided in  this
15    Act  and  shall not be appropriated, loaned, or in any manner
16    transferred to the General  Revenue  Fund  of  the  State  of
17    Illinois.
18        (d)  Every fiscal year the State Treasurer shall transfer
19    from the General Revenue Fund to the Capital Litigation Trust
20    Fund   an   amount   equal  to  the  full  amount  of  moneys
21    appropriated by the General Assembly (both  by  original  and
22    supplemental appropriation), less any unexpended balance from
23    the  previous  fiscal year, from the Capital Litigation Trust
24    Fund for the specific purpose of making funding available for
25    the prosecution and defense of  capital  cases.   The  Public
26    Defender  and  State's  Attorney  in  Cook  County, the State
27    Appellate   Defender,   the   State's   Attorneys   Appellate
28    Prosecutor,  and  the  Attorney  General  shall  make  annual
29    requests for appropriations from the Trust Fund.
30             (1)  The  Public  Defender  in  Cook  County   shall
31        request   appropriations   to  the  State  Treasurer  for
32        expenses incurred by the Public Defender and for  funding
33        for private appointed defense counsel in Cook  County.
34             (2)  The  State's  Attorney  in  Cook  County  shall
 
                            -27-     LRB093 08615 RLC 12349 a
 1        request  an  appropriation  to  the  State  Treasurer for
 2        expenses incurred by the State's Attorney.
 3             (3)  The State Appellate Defender  shall  request  a
 4        direct  appropriation  from  the  Trust Fund for expenses
 5        incurred by the State  Appellate  Defender  in  providing
 6        assistance  to  trial  attorneys  under  item  (c)(5)  of
 7        Section  10  of  the  State Appellate Defender Act and an
 8        appropriation to the State Treasurer  for  payments  from
 9        the Trust Fund for the defense of cases in counties other
10        than Cook County.
11             (4)  The   State's  Attorneys  Appellate  Prosecutor
12        shall request a direct appropriation from the Trust  Fund
13        to   pay  expenses  incurred  by  the  State's  Attorneys
14        Appellate Prosecutor and an appropriation  to  the  State
15        Treasurer  for  payments from the Trust Fund for expenses
16        incurred by State's Attorneys in counties other than Cook
17        County.
18             (5)  The Attorney General  shall  request  a  direct
19        appropriation   from  the  Trust  Fund  to  pay  expenses
20        incurred by the Attorney General in assisting the State's
21        Attorneys in counties other than Cook County.
22        The Public Defender and State's Attorney in Cook  County,
23    the State Appellate Defender, the State's Attorneys Appellate
24    Prosecutor,   and  the  Attorney  General  may  each  request
25    supplemental appropriations from the Trust  Fund  during  the
26    fiscal year.
27        (e)  Moneys  in  the Trust Fund shall be expended only as
28    follows:
29             (1)  To  pay  the   State   Treasurer's   costs   to
30        administer  the  Trust Fund.  The amount for this purpose
31        may not exceed 5% in any one fiscal year  of  the  amount
32        otherwise  appropriated  from  the Trust Fund in the same
33        fiscal year.
34             (2)  To pay the capital litigation expenses of trial
 
                            -28-     LRB093 08615 RLC 12349 a
 1        defense including,  but  not  limited  to,  DNA  testing,
 2        including  DNA testing under Section 116-3 of the Code of
 3        Criminal  Procedure  of  1963,   analysis,   and   expert
 4        testimony,  investigatory  and  other assistance, expert,
 5        forensic,   and   other   witnesses,    and    mitigation
 6        specialists,  and  grants  and  aid  provided  to  public
 7        defenders  or  assistance  to  attorneys  who  have  been
 8        appointed  by  the  court to represent defendants who are
 9        charged with capital crimes.
10             (3)  To pay the  compensation  of  trial  attorneys,
11        other  than  public defenders, who have been appointed by
12        the court to represent defendants who  are  charged  with
13        capital crimes.
14             (4)  To  provide  State's Attorneys with funding for
15        capital litigation expenses including,  but  not  limited
16        to,   investigatory  and  other  assistance  and  expert,
17        forensic, and other  witnesses  necessary  to   prosecute
18        capital  cases.    State's  Attorneys in any county other
19        than Cook County seeking funding for  capital  litigation
20        expenses including, but not limited to, investigatory and
21        other assistance and expert, forensic, or other witnesses
22        under this Section may request that the State's Attorneys
23        Appellate Prosecutor or the Attorney General, as the case
24        may  be,  certify  the expenses as reasonable, necessary,
25        and appropriate for payment from the  Trust  Fund,  on  a
26        form  created by the State Treasurer.  Upon certification
27        of the expenses and delivery of the certification to  the
28        State  Treasurer,  the  Treasurer  shall pay the expenses
29        directly from the Capital Litigation Trust Fund if  there
30        are  sufficient  moneys  in  the  Trust  Fund  to pay the
31        expenses.
32             (5)  To  provide  financial  support   through   the
33        Attorney General pursuant to the Attorney General Act for
34        the  several  county  State's  Attorneys  outside of Cook
 
                            -29-     LRB093 08615 RLC 12349 a
 1        County, but shall not be used to increase  personnel  for
 2        the Attorney General's Office.
 3             (6)  To   provide   financial  support  through  the
 4        State's Attorneys Appellate Prosecutor  pursuant  to  the
 5        State's  Attorneys  Appellate  Prosecutor's  Act  for the
 6        several county State's Attorneys outside of Cook  County,
 7        but  shall  not  be  used  to  increase personnel for the
 8        State's Attorneys Appellate Prosecutor.
 9             (7)  To  provide  financial  support  to  the  State
10        Appellate  Defender  pursuant  to  the  State   Appellate
11        Defender Act.
12        Moneys  expended from the Trust Fund shall be in addition
13    to county funding for Public Defenders and State's Attorneys,
14    and shall not be used to  supplant  or  reduce  ordinary  and
15    customary county funding.
16        (f)  Moneys  in  the  Trust Fund shall be appropriated to
17    the State Appellate Defender, the State's Attorneys Appellate
18    Prosecutor, the Attorney General, and  the  State  Treasurer.
19    The  State  Appellate Defender shall receive an appropriation
20    from the Trust Fund to enable it  to  provide  assistance  to
21    appointed  defense counsel throughout the State and to Public
22    Defenders in counties other than Cook.  The State's Attorneys
23    Appellate Prosecutor and the Attorney General  shall  receive
24    appropriations  from the Trust Fund to enable them to provide
25    assistance to State's Attorneys in counties other  than  Cook
26    County.   Moneys shall be appropriated to the State Treasurer
27    to enable the Treasurer (i) to make grants  to  Cook  County,
28    (ii)  to  pay  the  expenses  of Public Defenders and State's
29    Attorneys in counties other than Cook County,  (iii)  to  pay
30    the expenses and compensation of appointed defense counsel in
31    counties other than Cook County, and (iv) to pay the costs of
32    administering  the  Trust  Fund.  All expenditures and grants
33    made from the Trust Fund shall be subject  to  audit  by  the
34    Auditor General.
 
                            -30-     LRB093 08615 RLC 12349 a
 1        (g)  For Cook County, grants from the Trust Fund shall be
 2    made and administered as follows:
 3             (1)  For   each   State  fiscal  year,  the  State's
 4        Attorney and Public Defender must each  make  a  separate
 5        application to the State Treasurer for capital litigation
 6        grants.
 7             (2)  The  State  Treasurer shall establish rules and
 8        procedures  for  grant  applications.   The  rules  shall
 9        require the Cook County Treasurer as the grant  recipient
10        to  report on a periodic basis to the State Treasurer how
11        much of the grant has been  expended,  how  much  of  the
12        grant  is remaining, and the purposes for which the grant
13        has been used.  The  rules  may  also  require  the  Cook
14        County  Treasurer  to  certify  on  a periodic basis that
15        expenditures of the funds have  been  made  for  expenses
16        that  are  reasonable,  necessary,  and  appropriate  for
17        payment from the Trust Fund.
18             (3)  The  State  Treasurer  shall make the grants to
19        the Cook County Treasurer as soon as possible  after  the
20        beginning of the State fiscal year.
21             (4)  The  State's  Attorney  or  Public Defender may
22        apply for supplemental grants during the fiscal year.
23             (5)  Grant moneys shall be paid to the  Cook  County
24        Treasurer  in  block grants and held in separate accounts
25        for the State's Attorney, the Public Defender, and  court
26        appointed  defense  counsel  other  than  the Cook County
27        Public Defender, respectively, for the designated  fiscal
28        year, and are not subject to county appropriation.
29             (6)  Expenditure   of   grant   moneys   under  this
30        subsection  (g)  is  subject  to  audit  by  the  Auditor
31        General.
32             (7)  The Cook  County  Treasurer  shall  immediately
33        make payment from the appropriate separate account in the
34        county  treasury  for  capital litigation expenses to the
 
                            -31-     LRB093 08615 RLC 12349 a
 1        State's Attorney, Public  Defender,  or  court  appointed
 2        defense  counsel  other  than the Public Defender, as the
 3        case may be, upon order of the State's  Attorney,  Public
 4        Defender or the court, respectively.
 5        (h)  If  a  defendant in a capital case in Cook County is
 6    represented by court appointed counsel other  than  the  Cook
 7    County  Public Defender, the appointed counsel shall petition
 8    the court for an order directing the Cook County Treasurer to
 9    pay the court appointed counsel's  reasonable  and  necessary
10    compensation  and  capital  litigation  expenses  from  grant
11    moneys provided from the Trust Fund. These petitions shall be
12    considered   in   camera.    Orders   denying  petitions  for
13    compensation or expenses are final. Counsel may not  petition
14    for  expenses  that  may have been provided or compensated by
15    the State Appellate Defender under item (c)(5) of Section  10
16    of the State Appellate Defender Act.
17        (i)  In  counties  other  than Cook County, and excluding
18    capital litigation expenses or services that  may  have  been
19    provided by the State Appellate Defender under item (c)(5) of
20    Section 10 of the State Appellate Defender Act:
21             (1)  Upon  certification  by the circuit court, on a
22        form created by  the  State  Treasurer,  that  all  or  a
23        portion  of  the  expenses are reasonable, necessary, and
24        appropriate for payment  from  the  Trust  Fund  and  the
25        court's  delivery  of the certification to the Treasurer,
26        the Treasurer shall pay the certified expenses of  Public
27        Defenders  from  the  money appropriated to the Treasurer
28        for capital litigation expenses of  Public  Defenders  in
29        any   county   other  than  Cook  County,  if  there  are
30        sufficient moneys in the Trust Fund to pay the expenses.
31             (2)  If a defendant in a capital case is represented
32        by  court  appointed  counsel  other  than   the   Public
33        Defender,  the appointed counsel shall petition the court
34        to certify compensation and capital  litigation  expenses
 
                            -32-     LRB093 08615 RLC 12349 a
 1        including,  but  not  limited to, investigatory and other
 2        assistance, expert, forensic, and  other  witnesses,  and
 3        mitigation  specialists  as  reasonable,  necessary,  and
 4        appropriate  for  payment  from  the  Trust  Fund.   Upon
 5        certification on a form created by the State Treasurer of
 6        all  or  a  portion  of  the  compensation  and  expenses
 7        certified  as  reasonable, necessary, and appropriate for
 8        payment from the Trust Fund and the court's  delivery  of
 9        the  certification  to the Treasurer, the State Treasurer
10        shall pay the certified compensation  and  expenses  from
11        the money appropriated to the Treasurer for that purpose,
12        if  there are sufficient moneys in the Trust Fund to make
13        those payments.
14             (3)  A  petition  for  capital  litigation  expenses
15        under this subsection  shall  be  considered  in  camera.
16        Orders denying petitions for compensation or expenses are
17        final.
18        (j)  If the Trust Fund is discontinued or dissolved by an
19    Act  of  the  General  Assembly  or  by operation of law, any
20    balance remaining in the Trust Fund shall be returned to  the
21    General Revenue Fund after deduction of administrative costs,
22    any   other   provision   of   this   Act   to  the  contrary
23    notwithstanding.
24    (Source: P.A. 91-589, eff. 1-1-00.)

25        (725 ILCS 124/19)
26        (Section scheduled to be repealed on July 1, 2004)
27        Sec. 19.  Report; repeal.
28        (a)  The Cook County Public  Defender,  the  Cook  County
29    State's  Attorney,  the State Appellate Defender, the State's
30    Attorneys Appellate  Prosecutor,  and  the  Attorney  General
31    shall  each  report  separately  to  the  General Assembly by
32    January 1, 2004 detailing the amounts of  money  received  by
33    them  through  this  Act, the uses for which those funds were
 
                            -33-     LRB093 08615 RLC 12349 a
 1    expended, the balances then in the Capital  Litigation  Trust
 2    Fund   or  county  accounts, as the case may be, dedicated to
 3    them for the use and support of Public  Defenders,  appointed
 4    trial defense counsel, and State's Attorneys, as the case may
 5    be.   The  report  shall  describe  and  discuss the need for
 6    continued  funding  through  the   Fund   and   contain   any
 7    suggestions for changes to this Act.
 8        (b)  (Blank).   Unless   the  General  Assembly  provides
 9    otherwise, this Act is repealed on July 1, 2004.
10    (Source: P.A. 91-589, eff. 1-1-00.)

11        Section 25.  The Unified Code of Corrections  is  amended
12    by changing Section 5-4-3 as follows:

13        (730 ILCS 5/5-4-3) (from Ch. 38, par. 1005-4-3)
14        Sec.  5-4-3.  Persons  convicted  of, or found delinquent
15    for,  certain  offenses  or  institutionalized  as   sexually
16    dangerous; specimens; genetic marker groups.
17        (a)  Any  person  convicted  of,  found  guilty under the
18    Juvenile Court Act of 1987 for, or who received a disposition
19    of court supervision for, a qualifying offense or attempt  of
20    a  qualifying  offense,  convicted  or  found  guilty  of any
21    offense classified as a  felony  under  Illinois  law,  found
22    guilty  or  given supervision for any offense classified as a
23    felony  under  the   Juvenile   Court   Act   of   1987,   or
24    institutionalized  as  a  sexually dangerous person under the
25    Sexually Dangerous Persons Act, or committed  as  a  sexually
26    violent  person under the Sexually Violent Persons Commitment
27    Act shall, regardless of the sentence or disposition imposed,
28    be required to submit specimens of blood, saliva,  or  tissue
29    to the Illinois Department of State Police in accordance with
30    the provisions of this Section, provided such person is:
31             (1)  convicted of a qualifying offense or attempt of
32        a  qualifying  offense  on  or  after  July  1,  1990 the
 
                            -34-     LRB093 08615 RLC 12349 a
 1        effective date  of  this  amendatory  Act  of  1989,  and
 2        sentenced   to   a   term   of   imprisonment,   periodic
 3        imprisonment,  fine,  probation, conditional discharge or
 4        any other form of sentence, or  given  a  disposition  of
 5        court supervision for the offense;, or
 6             (1.5)  found  guilty  or given supervision under the
 7        Juvenile Court Act of 1987 for a  qualifying  offense  or
 8        attempt  of  a  qualifying offense on or after January 1,
 9        1997; the effective date of this amendatory Act of  1996,
10        or
11             (2)  ordered   institutionalized   as   a   sexually
12        dangerous  person on or after July 1, 1990; the effective
13        date of this amendatory Act of 1989, or
14             (3)  convicted of a qualifying offense or attempt of
15        a qualifying offense before July 1,  1990  the  effective
16        date  of  this  amendatory  Act  of 1989 and is presently
17        confined as a result of  such  conviction  in  any  State
18        correctional  facility  or  county  jail  or is presently
19        serving a sentence of probation, conditional discharge or
20        periodic imprisonment as a result of such conviction;, or
21             (3.5)  convicted or  found  guilty  of  any  offense
22        classified as a felony under Illinois law or found guilty
23        or  given  supervision  for  such  an  offense  under the
24        Juvenile Court Act of 1987 on or after August  22,  2002;
25        the  effective  date   of this amendatory Act of the 92nd
26        General Assembly, or
27             (4)  presently  institutionalized  as   a   sexually
28        dangerous  person  or  presently  institutionalized  as a
29        person found guilty but mentally ill of a sexual  offense
30        or attempt to commit a sexual offense; or
31             (4.5)  ordered   committed  as  a  sexually  violent
32        person on or after the effective  date  of  the  Sexually
33        Violent Persons Commitment Act; or
34             (5)  seeking  transfer  to  or residency in Illinois
 
                            -35-     LRB093 08615 RLC 12349 a
 1        under Sections 3-3-11.05 through 3-3-11.5 of the  Unified
 2        Code  of Corrections and the Interstate Compact for Adult
 3        Offender Supervision  or  the  Interstate  Agreements  on
 4        Sexually Dangerous Persons Act.
 5        Notwithstanding  other  provisions  of  this Section, any
 6    person incarcerated in a facility of the Illinois  Department
 7    of Corrections on or after August 22, 2002 the effective date
 8    of  this amendatory Act of the 92nd General Assembly shall be
 9    required to submit a specimen of  blood,  saliva,  or  tissue
10    prior to his or her release on parole or mandatory supervised
11    release,  as  a  condition  of his or her parole or mandatory
12    supervised release.
13        (a-5)  Any person  who  was  otherwise  convicted  of  or
14    received  a  disposition  of  court supervision for any other
15    offense under the Criminal Code of  1961  or  who  was  found
16    guilty  or  given  supervision for such a violation under the
17    Juvenile Court Act of 1987, may, regardless of  the  sentence
18    imposed,  be  required  by  an  order  of the court to submit
19    specimens  of  blood,  saliva,  or  tissue  to  the  Illinois
20    Department of State Police in accordance with the  provisions
21    of this Section.
22        (b)  Any  person required by paragraphs (a)(1), (a)(1.5),
23    (a)(2), (a)(3.5), and (a-5) to provide  specimens  of  blood,
24    saliva,  or  tissue shall provide specimens of blood, saliva,
25    or tissue within 45 days after sentencing or disposition at a
26    collection site designated  by  the  Illinois  Department  of
27    State Police.
28        (c)  Any  person  required  by paragraphs (a)(3), (a)(4),
29    and (a)(4.5) to provide specimens of blood, saliva, or tissue
30    shall be required to provide  such  samples  prior  to  final
31    discharge, parole, or release at a collection site designated
32    by the Illinois Department of State Police.
33        (c-5)  Any person required by paragraph (a)(5) to provide
34    specimens  of blood, saliva, or tissue shall, where feasible,
 
                            -36-     LRB093 08615 RLC 12349 a
 1    be required to provide the specimens  before  being  accepted
 2    for  conditioned  residency  in Illinois under the interstate
 3    compact or agreement, but no later than 45 days after arrival
 4    in this State.
 5        (c-6)  The  Illinois  Department  of  State  Police   may
 6    determine which type of specimen or specimens, blood, saliva,
 7    or  tissue,  is  acceptable for submission to the Division of
 8    Forensic Services for analysis.
 9        (d)  The  Illinois  Department  of  State  Police   shall
10    provide  all  equipment  and  instructions  necessary for the
11    collection of blood samples.  The collection of samples shall
12    be  performed  in  a  medically  approved  manner.   Only   a
13    physician authorized to practice medicine, a registered nurse
14    or   other  qualified  person  trained  in  venipuncture  may
15    withdraw blood for the purposes of  this  Act.   The  samples
16    shall  thereafter  be forwarded to the Illinois Department of
17    State Police, Division of Forensic Services, for analysis and
18    categorizing into genetic marker groupings.
19        (d-1)  The Illinois  Department  of  State  Police  shall
20    provide  all  equipment  and  instructions  necessary for the
21    collection of  saliva  samples.   The  collection  of  saliva
22    samples  shall  be  performed in a medically approved manner.
23    Only a person trained in the instructions promulgated by  the
24    Illinois State Police on collecting saliva may collect saliva
25    for   the  purposes  of  this  Section.   The  samples  shall
26    thereafter be forwarded to the Illinois Department  of  State
27    Police,  Division  of  Forensic  Services,  for  analysis and
28    categorizing into genetic marker groupings.
29        (d-2)  The Illinois  Department  of  State  Police  shall
30    provide  all  equipment  and  instructions  necessary for the
31    collection of  tissue  samples.   The  collection  of  tissue
32    samples  shall  be  performed in a medically approved manner.
33    Only a person trained in the instructions promulgated by  the
34    Illinois State Police on collecting tissue may collect tissue
 
                            -37-     LRB093 08615 RLC 12349 a
 1    for   the  purposes  of  this  Section.   The  samples  shall
 2    thereafter be forwarded to the Illinois Department  of  State
 3    Police,  Division  of  Forensic  Services,  for  analysis and
 4    categorizing into genetic marker groupings.
 5        (d-5)  To  the  extent  that  funds  are  available,  the
 6    Illinois Department  of  State  Police  shall  contract  with
 7    qualified   personnel  and  certified  laboratories  for  the
 8    collection, analysis, and categorization of known samples.
 9        (e)  The genetic marker groupings shall be maintained  by
10    the Illinois Department of State Police, Division of Forensic
11    Services.
12        (f)  The  genetic  marker  grouping  analysis information
13    obtained pursuant to this Act shall be confidential and shall
14    be released only to peace officers of the United  States,  of
15    other  states  or  territories, of the insular possessions of
16    the United States, of foreign countries  duly  authorized  to
17    receive  the  same,  to  all  peace  officers of the State of
18    Illinois and to all prosecutorial agencies,  and  to  defense
19    counsel  as provided by Section 116-5 of the Code of Criminal
20    Procedure of 1963.   The  genetic  marker  grouping  analysis
21    information  obtained pursuant to this Act shall be used only
22    for (i) valid law enforcement identification purposes and  as
23    required   by   the   Federal  Bureau  of  Investigation  for
24    participation in the National DNA database or (ii) technology
25    validation purposes or (iii) assisting in the defense of  the
26    criminally  accused  pursuant to Section 116-5 of the Code of
27    Criminal  Procedure  of  1963.   Notwithstanding  any   other
28    statutory provision to the contrary, all information obtained
29    under this Section shall be maintained in a single State data
30    base,  which  may  be  uploaded into a national database, and
31    which information may be subject to expungement only  as  set
32    forth in subsection (f-1).
33        (f-1)  Upon  receipt  of  notification of a reversal of a
34    conviction based on actual innocence, or of the granting of a
 
                            -38-     LRB093 08615 RLC 12349 a
 1    pardon pursuant to Section 12 of Article V  of  the  Illinois
 2    Constitution,  if  that  pardon  document specifically states
 3    that the reason for the pardon is the actual innocence of  an
 4    individual  whose  DNA record has been stored in the State or
 5    national DNA identification index  in  accordance  with  this
 6    Section  by  the Illinois Department of State Police, the DNA
 7    record shall be expunged from the DNA  identification  index,
 8    and  the  Department  shall  by  rule prescribe procedures to
 9    ensure that the record and any samples,  analyses,  or  other
10    documents  relating to such record, whether in the possession
11    of the Department or any law enforcement or police agency, or
12    any forensic DNA  laboratory,  including  any  duplicates  or
13    copies  thereof,  are  destroyed  and a letter is sent to the
14    court verifying the expungement is completed.
15        (f-5)  Any person who intentionally uses  genetic  marker
16    grouping  analysis  information,  or  any  other  information
17    derived  from  a  DNA  sample,  beyond the authorized uses as
18    provided under this Section, or any other  Illinois  law,  is
19    guilty of a Class 4 felony, and shall be subject to a fine of
20    not less than $5,000.
21        (g)  For   the  purposes  of  this  Section,  "qualifying
22    offense" means any of the following:
23             (1)  any violation or inchoate violation of  Section
24        11-6,  11-9.1,  11-11,  11-18.1,  12-15,  or 12-16 of the
25        Criminal Code of 1961;, or
26             (1.1)  any  violation  or  inchoate   violation   of
27        Section 9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2,
28        18-3,  18-4,  19-1,  or 19-2 of the Criminal Code of 1961
29        for which persons are  convicted  on  or  after  July  1,
30        2001;, or
31             (2)  any  former statute of this State which defined
32        a felony sexual offense;, or
33             (3)  (blank);, or
34             (4)  any  inchoate  violation  of   Section   9-3.1,
 
                            -39-     LRB093 08615 RLC 12349 a
 1        11-9.3,  12-7.3, or 12-7.4 of the Criminal Code of 1961;,
 2        or
 3             (5)  any violation or inchoate violation of  Article
 4        29D of the Criminal Code of 1961.
 5        (g-5)  (Blank).
 6        (h)  The Illinois Department of State Police shall be the
 7    State  central  repository  for  all  genetic marker grouping
 8    analysis information obtained  pursuant  to  this  Act.   The
 9    Illinois  Department of State Police may promulgate rules for
10    the form and manner of the collection of  blood,  saliva,  or
11    tissue samples and other procedures for the operation of this
12    Act.   The  provisions of the Administrative Review Law shall
13    apply to all actions taken under the rules so promulgated.
14        (i)  A person required to provide  a  blood,  saliva,  or
15    tissue  specimen  shall  cooperate with the collection of the
16    specimen and any deliberate act by that  person  intended  to
17    impede, delay or stop the collection of the blood, saliva, or
18    tissue specimen is a Class A misdemeanor.
19        (j)  Any  person  required  by  subsection  (a) to submit
20    specimens  of  blood,  saliva,  or  tissue  to  the  Illinois
21    Department of State Police for  analysis  and  categorization
22    into  genetic  marker  grouping,  in  addition  to  any other
23    disposition, penalty, or fine imposed, shall pay an  analysis
24    fee  of $200.  If the analysis fee is not paid at the time of
25    sentencing, the court shall establish a fee schedule by which
26    the entire amount of the analysis fee shall be paid in  full,
27    such  schedule  not  to  exceed  24  months  from the time of
28    conviction.  The inability to pay this analysis fee shall not
29    be the sole ground to incarcerate the person.
30        (k)  All analysis and categorization fees provided for by
31    subsection (j) shall be regulated as follows:
32             (1)  The State Offender  DNA  Identification  System
33        Fund  is  hereby  created  as a special fund in the State
34        Treasury.
 
                            -40-     LRB093 08615 RLC 12349 a
 1             (2)  All fees shall be collected by the clerk of the
 2        court  and  forwarded   to   the   State   Offender   DNA
 3        Identification System Fund for deposit.  The clerk of the
 4        circuit  court  may  retain  the  amount of $10 from each
 5        collected analysis fee  to  offset  administrative  costs
 6        incurred  in  carrying  out  the clerk's responsibilities
 7        under this Section.
 8             (3)  Fees deposited  into  the  State  Offender  DNA
 9        Identification  System  Fund  shall  be  used by Illinois
10        State Police crime  laboratories  as  designated  by  the
11        Director  of  State  Police.   These  funds  shall  be in
12        addition to any allocations  made  pursuant  to  existing
13        laws  and  shall  be  designated for the exclusive use of
14        State crime laboratories.  These uses  may  include,  but
15        are not limited to, the following:
16                  (A)  Costs  incurred  in providing analysis and
17             genetic  marker  categorization   as   required   by
18             subsection (d).
19                  (B)  Costs   incurred  in  maintaining  genetic
20             marker groupings as required by subsection (e).
21                  (C)  Costs  incurred  in   the   purchase   and
22             maintenance  of  equipment  for  use  in  performing
23             analyses.
24                  (D)  Costs  incurred in continuing research and
25             development  of  new  techniques  for  analysis  and
26             genetic marker categorization.
27                  (E)  Costs incurred  in  continuing  education,
28             training,  and  professional development of forensic
29             scientists regularly employed by these laboratories.
30        (l)  The failure of a person to provide a specimen, or of
31    any person or agency to collect a specimen, within the 45 day
32    period shall in no way alter the obligation of the person  to
33    submit  such  specimen,  or  the  authority  of  the Illinois
34    Department of State  Police  or  persons  designated  by  the
 
                            -41-     LRB093 08615 RLC 12349 a
 1    Department  to  collect the specimen, or the authority of the
 2    Illinois Department of State Police to  accept,  analyze  and
 3    maintain  the  specimen  or  to maintain or upload results of
 4    genetic marker grouping analysis information into a State  or
 5    national database.
 6    (Source: P.A.  91-528,  eff.  1-1-00;  92-16,  eff.  6-28-01;
 7    92-40,  eff.  6-29-01;  92-571,  eff.  6-26-02;  92-600, eff.
 8    6-28-02; 92-829, eff. 8-22-02; 92-854, eff. 12-5-02;  revised
 9    1-20-03.)

10        Section  95.  Severability.   The  provisions of this Act
11    are severable under Section 1.31 of the Statute on Statutes.

12        Section 99.  Effective date.  This Act takes effect  upon
13    becoming law.".